By Callum Ellison, Paralegal

Family Law proceedings are, in many instances, a daunting emotional exercise for the parties involved. That stress is increased in cases that involve domestic or family violence.

With unrepresented litigants a common occurrence in Courtrooms and their Microsoft Team equivalents around Australia, the justice system is presented with a number of sensitive challenges; namely, the possibility that a perpetrator of family violence cross examines their victim. This possibility can be incredibly daunting for victims, adding to the emotional toll of the process and in some cases can lead to them avoiding or stopping necessary litigation all together contrary to their legal rights and interests.

Section 102NA Family Law Act 1975 (Cth), which came into effect in 2019 addresses this issue. It protects victims from being cross-examined by another party in circumstances where there are allegations of or actual family violence. The section can be briefly summarised as follows: In a case where an unrepresented examining party intends to cross examine another party and there are allegations of family violence (with the victim being either the witness or examining party), the court can make an order for cross-examination to be conducted by a legal representative. If there is a relevant conviction for family violence, a family violence order or an injunction for personal protection, the court can make an order under the section. The court also has discretionary powers available to them under s 102NA(c)(iv) to make such an order.

If an order under s 102NA is made, both parties will require legal representation. If one or more cannot afford representation, then they will be directed to make an application to LegalAid. As the incidence of these types of orders increases, the Commonwealth Government has established the Family Violence Cross Examination Scheme to help ease the increased costs burden on courts and parties as a result of these orders.

The Review of Direct Cross Examination Ban published by the Law Council of Australia in mid-2021 found the Section to be largely effective at providing protection for victims. However, the authors identified awareness of the rules amongst parties and legal practitioners as an area that can be improved. Thus, its important that lawyers and clients are aware of the section to ensure that the Court can make an Order as early as possible to avoid unnecessary adjournments and delays.

If you have any questions about Section 102NA, or family law generally, please do not hesitate to contact the Mills Oakley Family Law Team on 02 8289 5800.